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Due Process and Deadly Force
John Hall, J.D.
Reprinted from the IUPA Website
Article reprinted from the February 1999 edition of the FBI Law Enforcement Bulletin.

Please Note: Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality understate law or are not permitted at all.

There are three provisions in the U.S. Constitution that are relevant to the use of force by government officials: the Fourth Amendment, the Eighth Amendment, and the Due Process Clause. By its explicit terms, the Fourth Amendment prohibits unreasonable searches and seizures. Accordingly, the U.S. Supreme Court has held that within the context of arrests or other seizures of persons, the use of deadly force by police officers must be "objectively reasonable, in light of the facts and circumstances confronting [the officers] . . . judged from the perspective of a reasonable officer on the scene . . . rather than with the 20/20 vision of hindsight."¹ The Eighth Amendment explicitly prohibits "cruel and unusual punishments." Because of this explicit text, the Supreme Court has held that the Eighth Amendment governs the use of force appropriate for maintaining control of convicted prisoners and has framed the issue as "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."² But while the texts of the Fourth and Eighth Amendments have assisted the courts in deciding the scope of their applications, the same cannot be said of the Due Process Clause.

As stated in the Fifth and Fourteenth Amendments, the Due Process Clause prohibits the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law." The U.S. Supreme Court has frequently noted the generalized nature of the due process guarantee, and in a recent decision, cautioned that the "guideposts for responsible decision making in this unchartered area are scarce and open-ended."³ Accordingly, the Court’s decisions have limited its application to those circumstances where there is no other "explicit textual source of constitutional protection against a particular sort of intrusive governmental conduct . . ."⁴

The critical nature of law enforcement decisions regarding the use of deadly force demands the clearest possible guidance with respect to the legal standards controlling the officers’ actions. A lack of clarity, particularly in circumstances that are tense, uncertain, rapidly evolving, fraught with danger, can lead to excesses of caution or zeal—to the detriment of an officer’s legitimate concerns for safety or of the citizen’s right to be free from an unconstitutional use of force by the police. Recent court decisions provide significantly more guidance not only as to when the Due Process Clause is applicable, but also as to what kinds of government conduct are likely to rise to the level of a due process violation. This article focuses on those two issues.

The Supreme Court historically has held that the concept of due process embodies both procedural and substantive rights. Simply described, procedural due process protects against "government power arbitrarily and oppressively exercised."⁵ As used in this article, the term "due process" refers to the substantive protections.

When Does the Due Process Standard Apply?

To determine when the due process standard is the appropriate measure of government conduct, it is first necessary to engage in a process of elimination. Because the Fourth Amendment governs the use of deadly force relating to arrests or other seizures of persons, and the Eighth Amendment governs the use of deadly against force against convicted prisoners; it may be stated as a general principle that due process governs deprivations of life, liberty or property that fall outside the boundaries of those two amendments. Recent Supreme Court refinements to the definition of seizures have simplified the task of deciding whether and when Fourth Amendment protections have been triggered. At the opposite end of the spectrum, the clearly discernible circumstances of conviction and imprisonment provide a relatively bright line for defining the boundaries of Eighth Amendment application. By this process of elimination, the Due Process Clause is potentially applicable to police use of deadly force in two general circumstances: 1) incidents where no Fourth Amendment seizure has occurred; and 2) incidents that occur during the interval between Fourth Amendment seizures and Eighth Amendment imprisonments (i.e., pretrial detentions).

Nonseizure Cases

The Supreme Court defines a Fourth Amendment seizure as "...a governmental termination of freedom of movement through means intentionally applied."⁶ Given the definition’s emphasis on intent with respect to both the object and the means, courts have concluded that neither unintended terminations of freedom of movement (e.g., the unintentional shooting of a hostage)⁷ nor intended terminations of freedom of movement brought about through unintended means (e.g., police pursuit of a suspect that ends with the intervention of an unexpected and unintended factor)⁸ fall within the parameters of the Fourth Amendment. In such cases, due process, not the Fourth Amendment, is the standard by which the constitutionality of the police action will be measured.

Pretrial Detentions

While recent case law simplifies the task of deciding whether a Fourth Amendment "seizure" has occurred, the task of deciding when the seizure ends and pretrial detention begins has proven a more troublesome one. Some courts focus on the initial act of seizure and conclude that the seizure phase is over once the arrestee is no longer in the custody of the arresting officer.⁹ At least one court has taken the view that an arrestee’s ". . . confinement to the detention cell at the police station changed his status from an arrestee to that of a pretrial detainee."¹⁰ Other courts apply a "continuing seizure" concept and consider the first appearance before a magistrate or the filing of formal charges as the dividing line.¹¹ The distinction is not merely academic. The application of the Fourth Amendment to the use of deadly force by officers can lead to a different conclusion than if the Due Process Clause is applied.

An illustrative case is Brothers v. Klevenhagen,¹² in which officers used deadly force to prevent the escape of a suspect who was being transported from one jail facility to another. The U.S. Court of Appeals for the Fifth Circuit applied the due process standard, holding that ". . . after the incidents of arrest are completed, after the [suspect] has been released from the arresting officer’s custody, and after the [suspect] has been in detention awaiting trial for a significant period of time . . ." the Fourth Amendment no longer applies. Applying the due process standard, the court concluded that the use of deadly force to prevent the escape of a pretrial detainee was not unconstitutional. It is significant that the suspect had been arrested for theft, and that, at the time he was shot, he was not believed to be armed or otherwise dangerous. Had the court applied the Fourth Amendment standard for preventing the escape of suspects as interpreted by the Supreme Court in Tennessee v.Garner,¹³ it is unlikely that the use of deadly force could have been justified to prevent the escape in the absence of "probable cause to believe that the suspect pose[d] a significant threat of death or serious physical injury to the officers or others."¹⁴

What is the Due Process Standard?

From the earliest cases interpreting the Due Process Clause, the Supreme Court has emphasized the high purpose of its protections ". . . to secure the individual from the arbitrary exercise of the powers of government . . .;"¹⁵ Focusing on the standard of "arbitrariness," the Court has rejected the notion that the due process guarantee imposes liability "whenever someone cloaked with state authority causes harm . . .;"¹⁶ rather, "only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’"¹⁷

To further define what may be viewed as "arbitrary in the constitutional sense," the Supreme Court has characterized the due process standard for almost fifty years as prohibiting those abuses of government power that "shock the conscience."¹⁸ The Court’s most recent refinement of this concept came in County of Sacramento v. Lewis.¹⁹ Although not a use-of-force case per se, the Court’s explanation and application of the due process standard are relevant to use-of-force cases.

Lewis was the passenger on a motorcycle being pursued by officers for speeding. In the course of the pursuit, the motorcycle tipped over, dumping Lewis onto the highway, where he was struck and killed by the pursuing police car. A lawsuit brought against the officers and the department under Title 42 U.S. Code, Section 1983, alleged violations of Lewis’s Fourteenth Amendment due process right to life. The trial court granted summary judgment to the officers and the department on the grounds that the plaintiff failed to point to any case in existence at the time of the alleged misconduct by the officers to support the view that Lewis had a due process right in the context of high-speed police pursuits.

The U.S. Court of Appeals for the Ninth Circuit reversed the trial court’s grant of summary judgment, concluding that the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established at the time of the events leading to Lewis’s death. The appellate court then determined that the appropriate due process standard for measuring an officer’s culpability in these circumstances is "deliberate indifference or reckless disregard" for a person’s right to life or personal safety. That decision was appealed to the Supreme Court.

The Supreme Court agreed with the appellate court that police liability could arise from injuries or death resulting from a high-speed chase but held that the court had erred in applying a "deliberate indifference or reckless disregard" standard to the facts of the case. Reiterating the view that "negligently inflicted harm is categorically beneath the threshold of constitutional due process," the Court agreed that in some circumstances, deliberate indifference might shock the conscience (e.g., in the context of failing to provide medical care to prison inmates).²⁰ However, with the observation that deliberate indifference that shocks in one environment may not do so in another, the Court suggested that the concept must be limited to circumstances when actual deliberation is practical. For example, the Court explained that even within the setting of a prison or jail, claims of inadequate medical care must be viewed differently from claims that officers used excessive force in response to a violent disturbance. In the latter case, the Court emphasized, ". . . a much higher standard of fault than deliberate indifference has to be shown . . ."²¹

Analogizing the prison riot scenario with other instances where officers are compelled to act quickly, the Court noted:

The Court held that in such circumstances, "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience necessary for a due process violation . . ."²³ Accordingly, the officer’s decision to engage in and continue the high-speed chase—even if it "offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practice . . ." —did not shock the conscience.²⁴

The impact of the Lewis decision on use-of-deadly force cases is already being seen. For example, in Medeiros v. O’Connell²⁵ police officers attempted to arrest a suspect who, an hour earlier, had stolen a car and had shot and wounded a salesman in the process. Following a brief pursuit, the suspect lost control of the car and landed in a ditch. He ignored commands to surrender and fired several shots at an officer. The officer did not return fire because of risks posed to a school van approaching from the opposite direction. The suspect commandeered the van, taking the driver and two students hostage. Another pursuit ensued, during which the suspect continued to fire shots at the officers, while the officers continued to hold their fire out of concern for the safety of the hostages.

Eventually, the officers forced the van to a stop by pinning it against a guard rail with their vehicles. As the officers approached the van, the suspect continued to fire at them. The returned fire, killing the suspect. Unfortunately, one of the police bullets ricocheted and fatally wounded one of the students.

A Title 42 U.S. Code Section 1983 lawsuit was filed against the officers by the parents of the deceased student, alleging violations of the Fourth and Fourteenth Amendments. The trial court granted summary judgment to the defending officers on the Fourth Amendment claim, holding that the unintentional shooting of the student did not constitute a "seizure."

Without deciding the Fourteenth (Due Process) Amendment claim, the court granted summary judgement on the grounds that the officers were entitled to qualified immunity. The U.S. Court of Appeals for the Second Circuit concurred in the judgement regarding the Fourth Amendment claim but held that the trial court should have addressed the due process claim before deciding the qualified immunity issue. The appellate court then turned to the due process claim.

Citing the Supreme Court’s decision in Lewis for the proposition that when officers face high-tension situations, neither negligence nor an intermediate level of fault such as deliberate indifference is enough to impose constitutional liability, the appellate court found that the officers’ actions in firing at the suspect did not reflect a purpose to harm the hostages and, therefore, did not shock the conscience.

Quite the contrary, the court noted: "The heroic and selfless conduct of the troopers in this case is the very opposite of conduct that could be said to shock the conscience . . . The conduct of the troopers was not merely constitutionally acceptable, it was objectively admirable."²⁶

A similar result was reached in Schaefer v. Goch,²⁷ where police officers unintentionally shot and killed a woman while she was being held hostage by her husband during an armed standoff. Special Response Team officers attempted to execute an arrest warrant on Jerry Nieslowski, who reportedly had earlier threatened patrons of a bar with a shotgun. Locating the suspect at his residence, the officers first attempted to enter the house by stealth in light of information that the suspect was a military man, that he was very strong, and that he had previously been a suspect in a murder investigation.

When that attempt failed, the officers battered open the front door and entered the house. Inside, they confronted Jerry, who fired at them with a shotgun, striking the ballistic shield one of the officers carried. The officers then retreated from the house and established a perimeter.

Shortly thereafter, the suspect’s wife, Kathy, walked out the front door of the house onto the porch. She ignored the shouts of several officers to "get down" and reentered the house. Moments later, she again walked onto the front porch, but this time she responded to the officers’ instructions and got down on her hand and knees. At that moment, Jerry stepped out the front door carrying a shotgun, took hold of Kathy’s hair or shoulder and began pulling her to her feet and back toward the door.

The officers identified themselves and ordered the suspect to show his hands and put down the gun. When he did not drop the gun, the officers began shooting, striking and fatally wounding both Jerry and Kathy. The officers’ subsequent statements differed as to whether the shotgun was pointed at one of the officers during these movements.

A law suit was filed by Kathy’s parents against one of the officers and the police department under Title 42 U.S. Code, Section 1983, alleging violations of both the Fourth Amendment and the Due Process Clause. The Fourth Amendment claim was based on the argument that a "seizure" occurred when the officers ordered Kathy to get down and she complied. The trial court granted summary judgment in favor of the defendants, and the United States Court of Appeals for the Seventh Circuit affirmed. Agreeing with the lower court’s decision that no Fourth Amendment seizure of Kathy occurred, the appellate court observed:

With respect to the due process claim, the appellate court cited the Supreme Court’s decision in Lewis and concluded that ". . . the officers’ decision to fire ‘does not inch close enough to harmful purpose’ to shock the conscience . . ."²⁹ The court dismissed the dispute over whether the suspect was pointing the shotgun at one of the officers at the time they fired their guns, explaining that "[g]iven the high-pressure, life and death nature of the standoff, the officers were not required to wait until [he] actually pointed his shotgun at them . . . The situation was fluid, uncertain, and above all dangerous, and the officers’ decision to shoot, regrettable though its results turned out to be, does not shock the conscience."³⁰

Although Brothers V. Klevenhagen³¹ was decided prior to the Lewis decision, it provides an illustration of how the due process standard would apply to the use of deadly force against an escaping pretrial detainee. Brothers was being transported in a vehicle from one jail to another following his arrest for auto theft. During transportation, he was handcuffed and his legs were restrained. Upon arrival at their destination, the officers got out of their car to check their weapons when they noticed that Brothers had freed himself from restraints and was running toward an open gate that was in the process of closing. The officers repeatedly shouted for Brothers to stop, and when he ignored their commands and attempted to crawl under the closing gate, they began shooting. Brothers died from gunshot wounds.

A lawsuit was filed under Title 42 U.S. Code, Section 1983, against the officers and the department alleging that the use of deadly force to prevent the escape of an unarmed, non-dangerous suspect was unconstitutional under the Fourth Amendment. The trial court rejected that argument and granted summary judgment to the defendants. Affirming the grant of summary judgment, the U.S. Court of Appeals for the Fifth Circuit held that due process, not the Fourth Amendment, applies to pretrial detainees and that the officers’ actions in using deadly force to prevent the escape of a pretrial detainee did not violate the due process standard.

The court observed that the officers fired at Brothers only after he ignored their commands to stop and continued to flee. The court concluded:

The focus on the motivation of the officers in this case fits with the Supreme Court’s language in Lewis that ". . . only a purpose to cause harm unrelated to the legitimate object . . . will satisfy the element of arbitrary conduct shocking to the conscience necessary for a due process violation.

Conclusion

The Supreme Court’s decision in County of Sacramento V. Lewis continues a theme established in other Supreme Court decisions where the issue has been the constitutionality of an officer’s decisions that were necessarily taken under circumstances that are "tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."³⁴ Just as with the Fourth or Eighth Amendment standards, the due process standard gives considerable deference to an officer’s judgment in high-stress and fast-moving situations. The Court distinguishes between those instances when there are "extended opportunities to do better" and those "[w]hen unforeseen circumstances demand an officer’s instant judgment . . ." In the latter instance, "even precipitate recklessness fails to inch close enough to harmful purpose" to shock the conscience.

35 118 S. Ct., at 1720 (1998).